Technology is often considered as a tool more common among younger generations, with older individuals less likely to have embraced the internet and smartphones that, for many of us, have become important parts of our lives.
As lawyers know, the court system and legal profession have embraced technology in a number of new ways over the past year. From Zoom hearings to probate applications filed by email, we have had to adapt to better use technology in the practice of law. Recent news articles also suggest that the pandemic appears to be increasing the use of technology among older adults. In particular, the last ten months are noted to have seen:
- Acceptance of applications typically used primarily by millennials seeking convenience by other groups;
- For many, home delivery has become a “necessity”;
- Video chat has become a “lifeline for older adults”, who may otherwise be totally isolated;
- Increased accessibility to telemedicine and virtual caregiving support; and
- Online education for individuals of all ages, whether geared to enhance career potential or otherwise.
Many of these trends have the potential to assist seniors in aging in place during the COVID-19 pandemic, which no doubt has become an increasingly attractive option in light of the tragic situation at many long-term care facilities. Increased technology use by seniors is noted to be a positive that has emerged as a result of COVID to make independent living more comfortable and safer. There are also a number of online resources available with recommendations for seniors wishing to safely age in place, including this review of possible Home Modifications available through Family Assets, a resource for senior care.
It will be interesting to see how our use of technology continues to evolve to assist individuals at all stages of life during the pandemic and beyond.
Thank you for reading.
As 2020 has come to a close, we all fervently hope that the coming year will be better than the last.
In that spirit of optimism, I have reflected on some resolutions as a lawyer.
- Improve Health – But, make it specific in some way. Like resolving to run in a 10k race later in the year.
- Sharpen Communication – Work to better client and colleague communication and consultation.
- Provide Recognition – It takes little effort to recognize the efforts of those around you, and to provide praise, and celebrate achievements.
- Finish CPD – Do those Continuing Professional Development hours early and before it becomes a worry.
- Get Organized – Attend to that one matter that you routinely avoid. Admit it. You have one.
- Manage Time – Make it specific in some way. Hold incoming emails until later in the day, instead of constantly interrupting workflow.
- Embrace New Technologies – It takes time and is anxiety making, but is usually a benefit. This is then followed by Cybersecurity nervousness.
- Seize the Future – Think about the future in a different way. Law and work itself have changed significantly in the last year. Such as working from home.
- Drink Less. The pandemic put an end to in-person networking, seminars, and social events but, this might be followed by more drinking. After the “Spanish Flu” it was the “Roaring Twenties”.
- Be Grateful – That the last year is over and although we all still have to be vigilant, this pandemic will end.
Studies have shown that only a small percentage of New Year’s resolutions actually get implemented! Good luck!
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The highly anticipated COVID-19 vaccine is being rolled out in Ontario, with some of the first shots having already been administered yesterday. The University Health Network in Toronto and The Ottawa Hospital will be the first to administer the vaccine. Frontline healthcare workers in hospitals, long-term care homes, and other high-risk settings will be given priority. Vaccinations are expected to expand to residents in long-term care homes, home care patients with chronic conditions, and First Nation communities and urban Indigenous populations later in the winter of 2021. The province has not said when vaccines will become available for every Ontarian who wishes to be immunized. However, once available, the province confirms that vaccines will not be mandated but strongly encouraged.
The mass administration of the COVID-19 vaccine could be a real game changer in the battle against coronavirus. However, a recent public opinion poll conducted by Maru Blue shows that only one-third of Canadians would take the vaccine immediately, about half of Canadians would bide their time to assess its safety or use, and the rest have no intention of getting the shot at all. So it appears that Canadians are somewhat divided on the question of whether and when to get vaccinated.
Given the difference of opinion regarding this new vaccine, it is not inconceivable that multiple substitute-decision makers (SDMs) could disagree on whether to give or refuse consent to the shot on behalf of an incapable person. How would such a disagreement be resolved?
First, it is important to note that Ontario’s capacity legislation sets out a hierarchy of SDMs. Pursuant to section 20 of the Health Care Consent Act (HCCA), the guardian of the person is at the top of this hierarchy, followed by an attorney for personal care, representative appointed by the Consent and Capacity Board (CCB), spouse or partner, parent or children, siblings, any other relatives, and lastly the Public Guardian and Trustee (PGT). The decision of the highest ranking SDM will prevail over dissenting opinions from those who are lower on the hierarchy.
If there are multiple equally ranked SDMs acting with respect to a particular decision, they all have to be in agreement – the majority does not rule. If the SDMs fail to reach a consensus, any of the SDMs could apply to the CCB to try and be appointed the sole representative to make the decision. However, this option is not available where the incapable person already has a guardian of person or attorney for personal care. Another option is for the SDMs to attend mediation to try to come to an agreement. If mediation is not successful, the health practitioner must turn to the PGT for a decision. Section 20(6) of the HCCA states that the PGT is required to act and cannot decline to act in this situation.
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Like many institutions, Ontario’s justice system was directly impacted by the COVID-19 pandemic. Although the courts did not close, they were required to accommodate the public health measures taken to combat the pandemic. Beginning in March 2020, the Ministry of the Attorney General (the “Ministry”) and the Superior Court of Justice (the “Court”) moved diligently to adopt and normalize the use of technology including video and teleconferencing for hearings, electronic signatures, and online platforms for document sharing.
On November 30, 2020, the Attorney General for Ontario announced amendments to the Rules of Civil Procedure (the “Rules”) to solidify these changes effective January 1, 2021. This significant step toward modernization has been met with great enthusiasm from many legal professionals and advisory bodies who view the changes as long-overdue. The amendments to the Rules will ensure continued access to the courts, and enable legal professionals to serve their clients with greater efficiency and cost-effectiveness.
I have summarized several noteworthy changes to the Rules below:
Virtual Hearings are Here to Stay…
Given that between March and September 2020, the Court had heard over 50,000 hearings virtually, it should come as no surprise that the Ministry has opted to make virtual hearings a permanent option for litigants.
Rules 1.08 and 1.08.1 are revoked and replaced with Rule 1.08, which requires a party seeking a hearing or step to specify the method of attendance: in person; by telephone conference; or by video conference. This rule does not apply to proceedings at the Ontario Court of Appeal, or in respect of case conferences (which are to be held by teleconference unless the Court specifies an alternative method). The new Rule 1.08 also applies to the rules for mandatory mediations and for oral examinations, with necessary modifications.
If a party objects to the proposed method of attendance, they must do so before the earlier of 10 days or seven days before the hearing. The objection will be dealt with via case conference. When hearing an objection, the Court must consider various factors such as :
- the availability of telephone conference or video conference facilities;
- the general principle that evidence and argument should be presented orally in open court;
- the effect of telephone or video conferencing on the Court’s ability to establish the credibility and observe the demeanor of witnesses; and
- the balance of convenience between parties for and opposed to a remote attendance.
Rule 57.01(1) of the Rules is amended to allow the Court to consider whether a party unreasonably objected to proceeding by telephone or video conference under Rule 1.08 in determining costs.
Furthermore, the Rules no longer assume that hearings will be heard in the county where the proceeding was commenced (Rules 37.15(1), 38.11(2)(b), 60.17(b), and 62.01(6)) or that parties will participate in person (Rules 37.03, 38.03(1.1), 50.05(1), 50.13(2), 54.05(2), and 76.05(2)).
… As is the Virtual Commissioning of Affidavits
Effective August 1, 2020, section 9 of the Commissioners for Taking Affidavits Act was amended to permit virtual and remote commissioning of affidavits. What was initially enacted as a temporary measure has now become permanent, and Rule 4.06(1)(e) is amended to permit virtual commissioning.
Fare Thee Well, Fax Machine – Service by Email is the New Normal
References to the service and delivery of documents by fax have been struck from Rules 16, 37, and 38. Rule 51.01(c) is also amended to strike the reference to service by telegram – yes, you read that correctly. Rule 16.01(4)(b)(iv) and Rule 16.05(1)(f) are amended to permit the service of documents by email without the consent of the other party/parties or obtaining a court order. Rule 16.09(6), which required a certificate of service to prove service by email, is revoked.
Use of Electronic Signatures
A new rule, Rule 4.01.1, provides that documents that may or must be signed by the court, a registrar, a judge, or an officer under the Rules may be signed with an electronic signature.
Official Guidelines for Using CaseLines
We previously blogged about the Ministry ’s adoption of CaseLines, a cloud-based document sharing and storage e-hearing platform for remote and in person court proceedings.
The new Rule 4.05.3 outlines the requirements for using CaseLines, the deadlines for filing documents through CaseLines, and formatting requirements for documents submitted through CaseLines. Any part who submits a document through CaseLines is required to retain the original document until the 30th day after the expiry of the period for an appeal in the proceeding. On request of the court, registrar, or another party, the party must make the original document available for inspection within five days of such a request.
Inconsistencies between the information provided in a document in the court file and the information provided in a document through CaseLines will be resolved in favour of the information in the court file. Furthermore, submitting a document through CaseLines does not amount to filing or service of that document.
Rule 4.01 is revoked and substituted with a new Rule 4.01 that specifies document standards for filing in both paper and electronic formats.
Rule 4.05.3(7) requires that documents submitted to CaseLines be in PDF format and include bookmarks and section headings where appropriate. References to authorities must be hyperlinked to websites they can be viewed free of charge (i.e. CanLII, e-Laws, etc.). If the authority is not publicly available, the relevant excerpt from the cited authority must be included in the document.
Thank you for reading.
“To weep is to make less the depth of grief.”
(Henry VI, Part III Act II, Scene I)
The numbers are breathtaking: over 12,000 Canadians have died of covid-19. Between covid and non-covid deaths, over 1.2 million Canadians are in some stage of grief. With the holidays just over the horizon, and the numbers showing no signs of ebbing, this time of year, already fraught for so many, is going to pose new and difficult challenges for so many of us. And according to Naheed Dosani, a palliative care physician and health justice activist, we’re not talking about grief enough.
In a recent interview with CBC News, Mr. Dosani shared his experience with “grief circles,” a gathering of colleagues where tears laughter and memories are shared in honour of the people for whom they have cared. Grief circles have moved online, but the number of participants are increasing, partly, he says, “because there’s more grief than ever before.” Shelly Cory, executive director of Canadian Virtual Hospice, sees this as “the hidden crisis of the whole pandemic.” Cory is a co-founder of the Canadian Grief Alliance, a coalition of leaders in bereavement and grief:
“Canadians have been robbed of goodbyes with dying friends and family or people they care about and forced to grieve in isolation without funeral rites. They and those working on the front lines of health care are at heightened risk for prolonged, complicated grief marked by depression, and the risk of suicide. Existing grief services are fragmented, under-funded and insufficient. Left unaddressed, significant long-term social, health and economic impacts will result.”
While Ms. Cory and Mr. Dosani are urging the federal government to implement a National Grief Strategy, the stark numbers reveal a tragic truth: we’re not talking to each other enough about grief. While lockdowns and safety measures may be preventing us from being present with a loved one at the end, grief and grieving is itself in a kind of quarantine. Unable to hug her mother and father-in-law after the death of her husband, Heather Ramey recently told Maclean’s magazine, “I want something more for my children other than this.”
Complicated grief, more than just prolonged sadness, can have devastating effects including PTSD, depression and suicidal thoughts. Pandemic related isolation and loneliness, and in particular around the holidays, can make matters more pronounced, or even worse.
It’s hard, it’s sad, but grief is still a process like any other. While grief is unique to each of us, the Centre of Addiction and Mental Health (“CAMH”) reminds us of a few suggestions to get started:
• Get clarity by naming the struggle and identify five things that have been hard, then tackle
them one at a time.
• One day at a time. If we only focus on smaller issues in a given day, we break things up
into smaller, more manageable pieces.
• Self-care, self-care, self-care. While grief can often lead us to take care of others, check in
with yourself every day. Take some time for yourself and be compassionate with yourself.
• Talk to someone. As the saying goes, “a burden shared, is a burden halved.”
It’s this final point that remains so challenging during a lockdown.
While there are several online resources and articles from local hospitals to the Harvard Business Review, it’s critical to remember to reach out and show your support, or ask for support, during a difficult time. Be it a front-line health worker like Mr. Dosani, or a colleague from years ago, or a friend you haven’t heard from in a few days: We need to talk each other more.
Ian Hull and Daniel Enright
“Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.”
In December of 1963, as America mourned the assignation of John F. Kennedy, Birch Bayh , the young United States Senator from Terre Haute, Indiana, introduced an amendment to the Constitution aimed at curing its dangerously vague language on vice-presidential succession and presidential disability. One of the many contingencies it aimed to address was, what happens if the President is unable to discharge the powers and duties of his office?
With the recent hospitalization of the current President after his diagnosis of Covid-19, much of the water cooler buzz, the nightly news, and social media was atwitter with questions surrounding the 25th and whether it would be evoked.
Such declarations are rare, but not uncommon. Presidents Reagan and George H.W. Bush each transferred power using 25 during pre-planned surgeries. But while we do not know, as of yet, if the White House counsel drafted language affording the transfer of power to the Vice-President (albeit temporarily) were the President’s health to take a turn, it did get us thinking that such a document could be akin to the most important Power of Attorney in the world.
In Ontario, the subject of a living will often comes up in similar circumstances. But the term “living will” is not used in any formal way. We have written about living wills here in the past. A more common term is advance directive: a document that clearly outlines your treatment and personal care wishes.
But whether you call it a living will or advance directive, they are not the same as a Power of Attorney (POA): a legal document in which you name a specific person to make decisions on your behalf. While an advance directive can form part of your POA for personal care, so your attorney is aware of your wishes, it does not carry the same weight with the court.
Finally, while we may not know whether the president executed a document under the 25th Amendment or if one was even drafted, it is a good reminder that even if our own illness or temporary absence does not pose a national security risk, outlining our wishes about care is always a capital idea.
Thanks for reading.
Ian Hull and Daniel Enright
Recent reports suggest that divorce and separation rates are on the rise during the pandemic (with rates of separation cited as having increased as much as 20% to 57% from last year, depending on the jurisdiction). This has been in part attributed to the stresses of lockdown and worsening financial situations.
Many Canadians may not be fully aware of the legal impact that separation and divorce have upon an estate plan, mistakenly believing that there is no real difference between marriage and a common-law partnership. However, the distinction in Ontario remains important from an estate planning perspective – for example:
- A common-law or divorced spouse does not have any automatic rights upon the death of a spouse who does not leave a will, whereas married spouses take a preferential share and additional percentage of a predeceasing married spouse’s estate on an intestacy;
- A married spouse has the right to elect for an equalization of net family property pursuant to the Family Law Act on death, whereas common-law spouses have no equalization rights on death;
- Marriage automatically revokes a will (unless executed in contemplation of the marriage), whereas entering into a common-law relationship has no such impact; and
- Separation (in the absence of a Separation Agreement dealing with such issues) does not revoke a will or any gifts made to a separated spouse, whereas gifts under a will to a divorced spouse are typically revoked and the divorced spouse treated as having predeceased the testator.
While top of mind for estate lawyers, lawyers practising in other areas of law and their clients may not necessarily turn their minds to the implications that separation and divorce may have on an estate plan, particularly soon after separation and prior to a formal divorce. With the potential for family law proceedings to be delayed while courts may not yet be operating at full capacity, combined with elevated mortality rates among certain parts of the population during the pandemic, it may be especially worthwhile in the current circumstances to remind our clients of the importance of updating an estate plan following any material change in family circumstances, including a separation or divorce.
Thank you for reading and stay safe,
In Ontario, a Continuing Power of Attorney for Property or a Power of Attorney for Personal Care must be signed by two witnesses. As our readers also know, as a result of COVID-19, witnessing and execution requirements for Powers of Attorney in Ontario have been relaxed to facilitate access to incapacity planning during the pandemic. These provisions have recently been extended to November 21, 2020. Provided that one witness to a Continuing Power of Attorney for Property or Power of Attorney for Personal Care is a licensee under Ontario’s Law Society Act, the document may be witnessed using audiovisual communication technology and signed in counterpart. The document does not otherwise need to be witnessed by a lawyer (although, where a lawyer has assisted in the preparation of Powers of Attorney, it will often be most practical for the lawyer and one of his or her staff to witness the client’s execution of the document).
Especially in light of social distancing measures, it is important to keep in mind the restrictions on who can witness incapacity planning documents. In Ontario, neither a Continuing Power of Attorney for Property nor a Power of Attorney for Personal Care can be witnessed by:
- the attorney or the attorney’s spouse;
- the grantor’s spouse;
- a child of the grantor;
- a person whose property/personal care is under guardianship; or
- an individual of less than eighteen years old.
If the lawyer him or herself is being appointed under the document, which is not an uncommon practice, the involvement of a second lawyer or a paralegal in the virtual execution and witnessing of the document(s) may be necessary.
In the Yukon, the witnessing requirements for Powers of Attorney are somewhat different. As it currently stands, in order for a Continuing Power of Attorney for Property (there referred to as an Enduring Power of Attorney) to be effective, a Certificate of Legal Advice must be provided by a lawyer. As a result, the lawyer typically witnesses the Power of Attorney, which is not otherwise valid. While only one witness is required, the lawyer providing the Certificate cannot be the attorney or the attorney’s spouse.
A recent article from Canadian Lawyer reviews proposed changes to Yukon’s Enduring Power of Attorney Act. One of the key amendments is the replacement of the requirement that a lawyer be involved in witnessing the execution of Continuing Powers of Attorney for Property with the option of the witnessing of such documents by two other individuals. Similar to the requirements in Ontario, a witness must be an adult and cannot be the spouse of the donor, the attorney, or the spouse of the attorney.
If approved, the recent Yukon Bill will eliminate the necessity that a lawyer be involved in the witnessing of Powers of Attorney to increase access to incapacity planning throughout the territory.
Thank you for reading.
The importance of regularly updating your will cannot be understated. A prudent individual should review their will upon significant life changes. An article on Forbes suggests that one’s estate plan should be reassessed at least every five years. A change in finances, the law or personal circumstances, such as marriage, divorce or a change in relationships, should prompt a review even sooner.
Covid-19 sparked a change in many people’s daily lives and personal attitudes. While death is not something pleasant to consider, Covid-19 has made many people more conscious of their own vulnerability and mortality. There is a psychological theory that describes this notion – Terror Management Theory. This phenomenon examines how people respond when death is made salient to them. In their book, The Worm at the Core, Sheldon Solomon and his colleagues explain how the Terror Management Theory begins with the notion that human beings have an innate need to survive, like other living organisms. However, while other organisms lack the intellectual ability to understand their impermanence, human beings do not. Perhaps as a result of heightened death awareness spurred by Covid-19, estate planners were flooded by clients rushing to update (or create) their estate plans at the beginning of the pandemic.
As students in the GTA return to school, we are again seeing a steady and concerning increase in Covid-19 cases. Ontario Education Minister, Stephen Lecce, expressed concerns of a possible second wave of the virus in conjunction with flu season. It is important for individuals to again reconsider whether their personal circumstances have changed in a significant way and to review their estate plans to ensure they are sufficient and up to date. It is crucial that Canadians do not succumb to “pandemic fatigue.”
Thanks for reading!
Ian Hull & Tori Joseph
On today’s podcast, Rebecca Rauws and Garrett Horrocks discuss the execution of Wills in the midst of COVID-19, and how the emergency measures introduced this year may impact how Wills are executed in the future. The Globe and Mail article mentioned by Garrett and Rebecca during the podcast can be found here.
Should you have any questions, please email us at email@example.com or leave a comment on our blog.